Adams v. Witmer, No. 15859.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 271 F.2d 29
• Docket Number: No. 15859.
• Decision Date: 28 September 1959
• Parties: Alonzo A. ADAMS, individually and as Special Administrator of the Estate of Lula Harris, Deceased, Appellant, v. Paul B. WITMER, individually and as Manager of the Los Angeles, California Land Office, Bureau of Land Management, United States Department of the Interior and L. B. Berriman, individually and as District Ranger of the Forest Service of the United States Department of Agriculture, Appellees.

271 F.2d 29 (1958)

Alonzo A. ADAMS, individually and as Special Administrator of the Estate of Lula Harris, Deceased, Appellant,
v.
Paul B. WITMER, individually and as Manager of the Los Angeles, California Land Office, Bureau of Land Management, United States Department of the Interior and L. B. Berriman, individually and as District Ranger of the Forest Service of the United States Department of Agriculture, Appellees.

No. 15859.

United States Court of Appeals Ninth Circuit.

December 10, 1958.

Rehearing Denied September 28, 1959.

271 F.2d 30

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271 F.2d 31

Milton Wichner, Los Angeles, Brock, Fleishman & Rykoff, Hollywood, Cal., for appellant

Laughlin E. Waters, U. S. Atty., L. L. Jensen, Asst. U. S. Atty., Los Angeles, Cal., Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Harold S. Harrison, Attys., Dept. of Justice, Washington, D. C., for appellees.

Before BONE, POPE and CHAMBERS, Circuit Judges.

POPE, Circuit Judge.

This action was filed for the purpose of procuring a judicial review of an administrative order of the Bureau of Land Management which denied the appellant's applications for patents to certain mining claims and cancelled his mineral entries thereon. Upon review by the Bureau of Land Management, the order was approved and affirmed.¹ Appeal was then taken to the Secretary of the Interior. Pending the hearing of the appeal, appellant made a motion to set aside the decisions of the Manager and of the Director and to remand the matter for rehearing before a duly authorized hearing examiner on the ground that the proceeding failed to comply with certain provisions of the Administrative Procedure Act,² and hence that the matter should be reheard de novo. The motion was heard but rejected. Thereafter, upon hearing, the appeal to the Secretary was denied and the orders affirmed. Thus the appellant has exhausted his administrative remedies.

The mining claims are located within the boundaries of the Los Angeles National Forest, and the contest, which resulted in appellant's application for patents being denied was instituted by officers of the Forest Service. Following the final action of the Department in rejecting the applications for mineral patents, the appellee Berriman, District Forest Service Ranger, demanded possession of the mining claims and ordered appellant to remove his structures and buildings thereon. This action followed.

271 F.2d 32

The complaint, from which the facts are taken, described the location of the mining claims and set forth circumstances relating to the applications for the patents, the contest thereof, and the proceedings within the Bureau of Land Management which led up to the order holding the mining claims invalid. It set out the grounds which appellant alleged rendered the administrative decision erroneous and subject to being vacated upon judicial review, and prayed for a declaration by the court to the effect that the administrative decision and order was invalid, and for a temporary and permanent injunction against the appellees who were named as defendants.

The defendants moved to dismiss the action and their motion was sustained "upon the ground that the complaint fails to state a claim of which this court has jurisdiction against the defendant or either of them, either in their official or personal capacity."

In a comment appended to the court's order, the Judge stated "I am of the view that the plaintiff has not shown himself entitled to any relief. The action, in effect, is an action against the Government of the United States and the Government has not consented to be sued. I do not think the Administrative Procedure Act applies. * * * But, assuming that it does, the action should be directed against the Secretary of the Interior whose final action declared the claims invalid, and who is not a resident of this District, and not against the local officers who are merely subalterns without discretionary powers and to whom only limited powers are granted."

Upon this appeal appellant contends that the court was in error in dismissing his action for want of jurisdiction, and that the court should have heard his case. He argues generally that wholly apart from any special statutory provision, since the act of these officials would operate to deprive him of valuable and vested interests in a mining claim, he was entitled to have a judicial review of the administrative order.

Appellant relies upon the rule stated in Harmon v. Brucker, 355 U.S. 579, 581, 78 S.Ct. 433, 435, 2 L.Ed.2d 503: "Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers."^2a More particularly, however, appellant bases his argument that he was entitled to a judicial review of these orders upon the express provisions of the Administrative Procedure Act.³ First, he asserts that in the process of arriving at the decision and order, there was violation of the requirements of the Act in several particulars: that the officer who presided at the reception of the evidence did not initially or otherwise decide the case; that defendant Witmer rendered the initial decision although he heard none of the evidence;⁴ that the decision was made by an officer engaged in the performance of investigative and prosecuting functions in violation of § 5(c); and that plaintiff was denied the opportunity to propose findings and conclusions with reasons therefor as provided by § 8(b). Second, appellant argues that, since the order here in question is one made reviewable under the provisions of the Act, the trial court was required to entertain this proceeding and to afford the appellant the judicial review called for by § 10.

We have no difficulty in reaching the conclusion that the Administrative Procedure Act is applicable here both in respect to the agency's procedure and to the right to judicial review. The restrictions of that Act with respect to the hearings, the proper presiding officers, and the methods of procedure within the agency itself, as prescribed in §§ 7 and 8

271 F.2d 33

are made mandatory by § 5 "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing." There is no statute relative to hearings such as that here involved. But as the appellant's right to his mining claims was a property right, it follows that the requirements of due process necessitate that he have a hearing before he can be deprived of that property right. This constitutional requirement is no less mandatory than would be a mere statutory requirement for hearing. As stated in Wong Yang Sung v. McGrath, 339 U. S. 33, 49, 70 S.Ct. 445, 454, 94 L.Ed. 616, "The constitutional requirement of procedural due process of law derives from the same source as Congress' power to legislate and, where applicable, permeates every valid enactment of that body."

There is no doubt but that the Bureau of Land Management and the Department itself comes within the definition of "agency" found in the Administrative Procedure Act. Indeed the Department itself has expressly held that a proceeding of this kind is governed by and must be heard in accordance with the requirements of the Act, United States v. O'Leary, 63 I.D. 341 (1956). It would be difficult to improve upon the reasoning and conclusions of that opinion.⁵

Furthermore, it seems plain that under § 10 of the Act appellant was entitled to judicial review of the order here involved. That section provides (subject to certain exceptions presently to be noticed by us) that "any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof." The only exceptions are those stated in the first sentence of the section which excepts from this review orders where statutes preclude judicial review, or where "agency action is by law committed to agency discretion." The first exception is not applicable for no statute precludes judicial review here.

Appellees contend that the second exception applies, — that in this case the agency action was "by law committed to agency discretion."

Of course the officers of the Bureau of Land Management such as the appellee, Witmer, and those authorized within the Department to review his action, are authorized and required to exercise discretion in passing upon applications for patents to mining claims or upon contests with respect thereto. But this does not preclude judicial review within the meaning of the exception here involved. See Homovich v. Chapman, 89 U.S.App.D.C. 150, 191 F.2d 761, 764. The exercise of discretion by the agency does not in itself negative the right to judicial review. In view of what the Supreme Court has said about judicial review in Harmon v. Brucker, supra, and in the cases there cited, we cannot assume that the discretion granted the officials of the Bureau of Land Management to make decisions in these cases is an unreviewable one.⁶

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The whole history of legislation relating to mining claims discloses a purpose on the part of Congress to provide the locator of such claims with the fullest opportunity to test in the courts the rights acquired by his locations. Thus § 30 of Title 30 U.S.C.A. provides an elaborate manner for court trial of adverse claims to mining claims as a part of the procedure provided for issuing patents under § 29. It would seem strange indeed if alongside these elaborate provisions for court hearings as to adverse claims Congress had established a system whereby a locator might lose his mining claim altogether through a non-reviewable decision of an administrative official, especially in view of the fact that a valid mining claim is property in the fullest sense.⁷

Such decisions have in fact been reviewed by the courts for many years and long before the Administrative...